PUBLIC INTERNATIONAL LAW ASSIGNMENT (5000 WORDS) 1

Introduction
A subject of international law is “an entity capable of possessing international rights
and duties and endowed with the capacity to take legal action in the international
plane”.1 In the past, States were considered the only subjects of international law and
the only legal persons, possessing the totality of rights and duties recognized by
international law. With developments in international law especially the establishment
of the UN, other non-state actors like international organizations have emerged and it
has become clear that States are not the only subjects of international law. To what
extent do these international organizations possess international legal personality?
This paper examines the extent of the international legal personality of international
organizations by initially discussing the meaning and types of international
organizations; by considering the concept of legal personality and the criteria for
international legal personality of international organizations; and finally by
determining the scope of the legal personality of international organizations, their
rights and duties and whether they possess objective personality.

1.1 Definition and types of international organizations.

Under the 1986 Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations,2 an international
organization is defined as “an inter-governmental organization”.3 This definition
clearly excludes non-governmental organizations.4 An international organization can
also be defined as “an association of States established by and based upon a treaty,
which pursues common aims and which has its own special organs to fulfil particular
functions within the organization”.5 There are different types of international
organizations, these include:
(a) Universal Organizations: which are also known as „open‟ organizations.
Membership of such an organization is not restricted to any region but is open to all
States satisfying its membership requirements. An example is the UN.
(b) Regional Organizations: these are “organizations created by States that share a
common geographic or policy bond”.6 Membership is restricted to a particular group
of States example States of a particular region like the AU, or States with a common
policy like NATO.

1
Dr. P.R. Menon, “The Legal Personality of International Organizations” 4 SJIL (1992) p.79 (hereafter
referred to as „Menon‟), at p.79.
2
Hereafter referred to as „VCLTSIO‟, Art.2(1)(i).
3
Inter-governmental Organizations are international organizations created by States for States. It is
basically an association of governments. Example is the UN. Under Chapter 2 of the UN Charter,
membership of the UN is open to only States. See Art.4
4
Non-governmental Organizations are organizations established by individuals or groups and usually
governed by the law of the State where it is incorporated. States are usually excluded from membership
of such organizations although they are mostly funded by States. An example is Greenpeace
International. Although they are excluded from the definition of international organizations, some non-
governmental organizations such as the International Committee of the Red Cross, possess some form
of international legal personality.
5
Bindschedler, R.L., „International Organizations, General Aspects‟, in Bernhardt, R., ed.,
Encyclopedia of Public International Law, vol. 5: International Organizations in General, Universal
International Organizations and Cooperation. North Holland Publishing Company (1983), p.120.
Menon at p.93 defined it as “an association of States established by a treaty, possessing a constitution
and common organs and having a legal personality distinct from that of the member States”.
6
James E. Hickey, “The Source of International Legal Personality in the 21st Century”, 2 HLPS (1997)
p.1 at p.8

Electronic copy available at: http://ssrn.com/abstract=2052555

PUBLIC INTERNATIONAL LAW ASSIGNMENT (5000 WORDS) 2

(c) Supranational Organizations: these are hybrid organizations composed of States.

They are structured in a way similar to federal States. They make decisions binding
directly on member States and their nationals, and their laws have supremacy over,
and override conflicting, national laws of member States. A typical example is the
EU. The EU is established in such a way that EU law does not only bind member
States which it regulates, but has direct effect on the nationals of these member States.
Rights and obligations created by EU law must be upheld by the domestic courts of
member States.

1.2 Features of International Organisations.

As established, international organizations, like States are subjects of international
law. There are however some differences between both subjects namely:
(a)Sovereignty: whereas a State is a sovereign entity, an international organization is
composed of sovereign States.7
(b)Territory: States as a matter of law possess a defined territory over which they
exercise control; international organizations on the other hand do not possess territory
but they can however administer a territory. For instance the UNMIK8 in Kosovo.
(c)Unlike States, international organizations do not come into existence on the basis
of general international law; but through a convention which contains their
constitution.9
(d)Competence: A State possesses a generic competence. In order to attain its goals, it
can bind itself through political, economic, social, cultural and technical relationships.
An international organization on the other hand possesses specific competence; it is
limited to the goals set out in its Charter.10
(e)Immunity: States possess immunity by virtue of being States; their immunity is
provided for under general international law, whereas the immunity of international
organizations is based on agreement and is limited to the necessity of its functions.
(f)Equality: All States are equal under international law regardless of how big or
small they are. This is not the same for international organizations.11

2.1 The concept of legal personality.

The concept of legal personality exists in both municipal and international law.
Generally, it is the “means by which a particular legal system attributes rights and
obligations to an entity separate from and independent of those who created it or are
part of it”.12 The extent of these rights and duties vary with each legal entity thus all
legal persons are not equal and do not necessarily possess the same rights and
obligations. Some are considered legal persons for the purpose of a single right or
duty while others have a great number of rights and duties attributed to them. In
international law, an entity which exercises international rights, duties and powers

7
Menon, p.82, see also Oleg I. Tiunov, “The International Legal Personality of States:
Problems and Solutions”, 37 SLULJ (1992-1993), p.323 at p.327
8
United Nations Interim Administration Mission in Kosovo established by S/RES/1244
(1999)
9
Menon, p.82
10
ibid
11
ibid
12
Guenter Weissberg, International Status of the United Nations, Oceana Publications
Inc.(1961) (hereafter referred to as „Weissberg‟) at p.21

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PUBLIC INTERNATIONAL LAW ASSIGNMENT (5000 WORDS) 3

distinct from its members on the international plane, is said to possess international
legal personality.13 Such entities are referred to as „subjects of international law‟.

Like in municipal law, subjects of international law are not necessarily identical in
nature or in the extent of their rights.14 A State is regarded as the primary subject of
international law “possessing the totality of rights and duties recognized by
international law”.15 Before the advisory opinion of the ICJ in the Reparations case,
there existed a lot of controversy on whether international organizations are subjects
of international law possessing international legal personality.16 In 1948, the question
arose on whether the UN was a subject of international law possessing the capacity to
bring an international claim for reparation of injuries suffered. The General Assembly
by Resolution 258 (III) submitted this question to the ICJ for an advisory opinion on
the status and capacity of the United Nations under international law.

To answer this question, the ICJ had to first establish whether the UN had
international legal personality. After considering the characteristics of the UN under
the UN Charter, the ICJ came to the conclusion that although the Charter did not
expressly confer international legal personality on the UN, “the organization was
intended to exercise and enjoy, and is in fact exercising and enjoying functions and
rights which can only be explained on the basis of possession of a large measure of
international personality, and the capacity to operate upon an international plane … its
Members, by entrusting certain functions to it, with the attendant duties and
responsibilities, have clothed it with the competence required to enable those
functions to be effectively discharged”.17 The ICJ thus concluded that the UN is “an
international person”;18 it is a “subject of international law capable of possessing
international rights and duties, and has the capacity to maintain its rights by bringing
international claims”.19
Based on the conclusion of the ICJ, the UN, and by extension other international
organizations, possesses international legal personality.

2.2 Criteria for international legal personality.

Not all international organizations possess international legal personality;20 an
organization may exist but lack the organs and objects necessary for legal

13
C.F. Amerasinghe, “International Legal Person Revisited” 47 AJPIL (1995) p.123,
(hereafter referred to as „Amerasinghe‟) at p.127. It is however possible that an international
organization may possess personality under municipal law but not possess international legal
personality.
14
Reparation for injuries suffered in the service of the United Nations, Advisory Opinion:
I.C.J. Reports 1949,p. 174 (hereafter referred to as the „Reparations Case‟) at p.178
15
ibid p.180
16
The opinion of the PCIJ in the Jurisdiction of the European Commission of the Danube
Advisory Opinion, P. C.I.J., Series B, No. 14, p. 64. that “as the European Commission is
not a State, but an international institution with a special purpose, it only has the functions
bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but
it has power to exercise these functions to their full extent, in so far as the Statute does not
impose restrictions upon it”, did little to help this controversy.
17
ibid p.179
18
ibid
19
ibid
20
The British Commonwealth though clearly an international organization, does not possess
international legal personality distinct from its member States.
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personality.21 Sometimes the legal personality of an international organization is

expressly stated in its constitutive treaty however this is relatively rare.22 What then
are the criteria for assessing whether an international organization possesses
international legal personality?
There are three approaches to this question namely:
(a) The subjective approach which states that the legal personality of an international
organization derives from the will of States explicitly attributed to it in a constitutive
treaty. Thus, “there is no general code to require automatic recognition of legal
personality when certain criteria are fulfilled … bestowal of international legal
personality remains an exclusively reserved option of States”.23
(b) The objective approach which associates the international legal personality of
international organizations with certain criteria, the existence of which endows the
organization with personality on the basis of general international law. Once these
criteria are met, an international organization possesses international personality.24
(c) The implied powers or functional approach is a combination of the subjective and
objective approaches. It asserts that “personality derives indirectly from the functions
of the organization appropriately exercised through its organs especially when that
exercise demonstrates a will separate from its members”.25 The ICJ used the implied
powers approach in the Reparations case; “it referred to some of the criteria necessary
to establish objective personality such as organs and distinct purposes and at the same
time referred to the implied intention of the founders as manifest in according the
organization certain rights and privileges”.26

With the decline of Statist approaches in the late 1980s, the objective approach has
become more popular. However writers do not agree on the criteria for international
personality. Some emphasize permanency, separate purposes, distinct powers and
organs while others include membership and decision making.27 As summarized by
Brownlie,28 these criteria are

21
Ian Brownlie, Principles of Public International Law, Oxford University Press (2008) (hereafter
referred to as „Brownlie‟) at p.678
22
For example, Art.210 of the 1957 Treaty of Rome, Art. 4(1) of the 1998 Rome Statute of the
International Criminal Court. It must be pointed out that the fact that the constitution of an international
organization does not expressly confer international personality on the organization does not mean that
it does not possess international legal personality. Such provisions however „clarify the status of the
organization for non members. If a non-member were to doubt the organization‟s competence to
perform international acts, a clear constitutional provision may be of some assistance‟. See H.G
Schermers and N.M. Blokker, International Institutional Law, Nijhoff Publishers (2003) at p.988.
Weissberg, p.23 opines that “the sole difference between an organization whose charter specifically
endows it with international personality and one not so endowed is that the former may, without any
hesitation, be considered a subject of international law”.
23
Esa Paasivirta “The European Union: from an aggregate of States to a Legal Person?” 2 HLPS
(1997), p.37 (hereafter referred to as „Paasivirta‟) at p.41
24
For example, see Finn Seryested “Objective International Personality of Intergovernmental
Organizations” 34 NJIL (1964), p.3 (hereafter referred to as „Seryested‟)
25
Paasivirta, p.43
26
Nigel D. White, The Law of International Organizations, Manchester University Press (2005) at p.44.
See also Amerasinghe, p.130
27
According to Seryested, p.47; p.101, the criteria are international organs (i.e. organs established by
two or more sovereign States), which are not all subject to the authority of one State or other organized
community) (but only to that of the participating States acting jointly through their representatives on
such organs), which perform ‟sovereign‟ and/or international acts) in their own name and which are not
authorized by all) their acts to assume obligations (merely) on behalf of the several participating
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(i) Permanent association of States, with lawful objects equipped with organs.
(ii)Distinction in terms of legal powers and purposes between the organization and its
member States.
(iii)Existence of legal powers exercisable on the international plane and not solely
within the national systems of one or more State.
An organisation that does not meet these criteria might be treated as a mere organ
common to these States and acting on their behalf.29

3.1 Extent of legal personality.

As established, international organizations have international legal personality. What
then is the extent of this legal personality, do they have the same capacity as States or
are they limited by their constituent treaties?

In the Reparations case, the ICJ dealing with the extent of the personality of
international organizations stated that “whereas a State possesses the totality of
international rights and duties recognized by international law, the rights and duties of
an entity such as the Organization must depend upon its purposes and functions as
specified or implied in its constituent documents and developed in practice”.30 Thus
“the Organization must be deemed to have those powers which, though not expressly
provided in the Charter, are conferred upon it by necessary implication as being
essential to the performance of its duties”.31 In the Effect of awards of compensation
made by the U. N. Administrative Tribunal case,32 with regard to the power of the
General Assembly to establish a tribunal to deal with disputes between the
Organization and staff members without express authorization to do so in the UN
Charter, the ICJ opined that “the power to establish a tribunal … was essential to
ensure the efficient working of the Secretariat, and to give effect to the paramount
consideration of securing the highest standards of efficiency, competence and
integrity. Capacity to do this arises by necessary intendment out of the Charter”. In
the Certain expenses of the United Nations case, 33 the ICJ took a slightly different
approach to the issue of the lawfulness of the activities for which the UN had incurred
expenses. It opined that “such expenditures must be tested by their relationship to the
purposes of the United Nations in the sense that if an expenditure were made for a
purpose which is not one of the purposes of the United Nations, it could not be
considered an „expense of the Organization‟… but when the Organization takes action
which warrants the assertion that it was appropriate for the fulfilment of one of the
stated purposes of the United Nations, the presumption is that such action is not ultra
vires the Organization”. In the Interpretation of the Agreement of 25 March 1951

States”. He further points out at p.49 that a convention is not a „necessary requirement either to
constitute an international organization or to establish it as a subject of international law‟.
28
P.677
29
Seryested, p.57 however submits that “if an organ does not fulfil the criteria listed above, it can be a
subject of international law only if and to the extent that States have conferred international functions
on it, and only in relation to these States and to States which have expressly or by implication
recognised these functions”
30
p.180, emphasis is mine
31
p.182, emphasis is mine
32
Advisory Opinion of July 13th, I954: I.C. J. Reports 1954, p. 47 (hereafter referred to as the „Effects
of Awards Case‟) at p.57. Emphasis is mine.
33
(Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962: I.C. J. Reports 1962,
p.151 (hereafter referred to as the „Certain Expenses case‟), at p.167-168; emphasis is mine.
PUBLIC INTERNATIONAL LAW ASSIGNMENT (5000 WORDS) 6

between the WHO and Egypt,34 Judge Gros,35 stated that “each international
organization has only the competence which has been conferred on it by the States
which founded it, and its powers are strictly limited to whatever is necessary to
perform the functions which its constitutive charter has defined. This is thus a
competence d' attribution, i.e., only such competence as States have "attributed" to the
organization … Anything outside that competence and not calculated to further the
performance of the task assigned lies outside the powers of the organization, and
would be an act ultra vires, which must be regarded as without legal effect”. In the
Legality of the Use by a State of Nuclear Weapons in Armed Conflict,36 the ICJ opined
that international organizations are subjects of international law which do not, unlike
States, possess a general competence. International organizations are governed by the
"principle of speciality", that is to say, they are invested by the States which create
them with powers, the limits of which are a function of the common interests whose
promotion those States entrust to them”.

From the foregoing, it is clear that international organizations do not have the same
legal personality as States; their personality is limited. However it is not limited to
what is conferred by their constituent treaty; but extends to powers which arise by
necessary implication as being essential to the performance of their duties,
necessitated by the discharge of their functions, or appropriate for the fulfilment of
their stated purposes.

3.2 Objective Personality

Having established that international organizations have international legal
personality necessary to carry out their functions, is this personality valid vis-à-vis
third States? In other words, do they possess objective personality?
In the Reparations case, the ICJ opined that “fifty States, representing the vast
majority of the members of the international community, had the power, in
conformity with international law, to bring into being an entity possessing objective
international personality; and not merely personality recognized by them alone
together with capacity to bring international claims”.37 Despite this dictum of the ICJ,
a lot of controversy still exists. Some scholars argue that as third States are not bound
by the organization‟s constituent treaty, the organization must be recognized by them
in order to have legal status. Others argue that only universal organizations have
objective personality. However, the most popular view is that once an organization is
created with international legal personality, by whatever number of States, that
personality is objective and is effective vis-à-vis third States as well.38 Thus third
States “may not regard such organizations as without international personality in their
dealings with them”.39

34
Advisory Opinion, I. C.J. Reports 1980, p. 73.
35
See Separate Opinion of Judge Gros, p.99 at p.103; emphasis is mine.
36
Advisory Opinion, I.C.J. Reports 1996, p.66 at p.78 para. 25
37
p.185
38
As Amerasinghe opined at p.141, “the number of States creating an entity is irrelevant for the
purposes of objective legal personality … no recent instances are known of a non-member State
refusing to acknowledge the personality of an organization on the ground that it was not a member
State and had not given the organization specific recognition”.
39
ibid, p.145
PUBLIC INTERNATIONAL LAW ASSIGNMENT (5000 WORDS) 7

3.3 Rights and duties of international organizations.

A lot of controversy exists on whether international organizations, by virtue of having
international legal personality, possess inherent rights, duties and capacities. Some
writers argue that international organizations like States have the inherent capacity to
perform any act of international law which it is in a practical form to perform whereas
others argue that the rights and duties of international organizations is determined by
the constitution of the organization and must be related to its function. 40 These rights
and duties include:
(a) Right to enter into treaties41
(b) Right to immunity from State jurisdiction for acts and activities performed by the
organisation.
(c) Right to protection for the organisation‟s agents acting in their official capacity in
the territory of a third State.
(d) Right to send and receive legations 42
(e) Right to bring international claim to obtain reparation for damages caused by
member States or third States to the organisation or its officials.
(f) Duty to provide compensation for damages caused by the organisation or its
agents.

Conclusion
Based on the foregoing, it is clear that whereas a State possesses the totality of
international rights and duties recognized by international law, the international
personality of an international organization is limited to whatever is necessary to
perform its functions.

40
As classified by Amerasinghe, p.134, theories on the capacity of international organizations can be
grouped into three categories: (a) those that assert that international personality results in the same
inherent capacities for States and international organizations. (b) those that have concluded that while
there are inherent capacities resulting from international personality, only those functions may be
exercised which flow from the constitution expressly or by implication. (c) those that rest all the
capacities of international organizations with international personality on expression or implication of
powers in the constitution. Seryested, p.28 argues that “if most organizations do not perform all such
types of „sovereign‟ and international acts as States do, this is not because they lack the legal capacity
to do so, but because the practical need does not present itself”. He goes on to argue that “international
organizations like States, have an inherent legal capacity to perform any „sovereign‟ or international
acts which they are in a practical position to perform. They are in principle, from a legal point of view
general subjects of international law, in basically the same manner as States”
41
Under Art.6 VCLTSIO, “the capacity of an international organization to conclude treaties is
governed by the rules of that organization”.
42
This is regulated by the 1975 Vienna Convention on the Representation of States in their Relations
with International Organisations of a Universal Character (not yet in force)